Citation Nr: 25004879 Decision Date: 04/10/25 Archive Date: 04/10/25 DOCKET NO. 16-21 565 DATE: April 10, 2025 REMANDED Entitlement to service connection for a pulmonary disability is remanded. Entitlement to eligibility for a special home adaptation is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to April 1981. This matter is on appeal from an April 2014 rating decision. Historically, the Veteran's service connection claim for a pulmonary condition was reopened by the Board in a November 2018 Board decision and was most recently remanded in June 2023 for development. The directives included making attempts to verify the Veteran's alleged exposure to various toxins while she was stationed at Fort McClellan and Fort Dix and obtaining VA medical opinions to determine the etiology of the Veteran's pulmonary condition. The Veteran's appeal has been advanced on the board's docket. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection for pulmonary disability. Therefore, although the Board sincerely regrets the additional delay, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran submitted a letter on February 14, 2025, that in addition to agrument, contained evidence after the January 2025 Supplemental Statement of the Case (SSOC) was issued but before the appeal was transferred by the Regional Office (RO) back to the Board on February 19, 2025. Therefore, the case must be remanded for the AOJ to consider the additional evidence submitted and issue a new SSOC. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 19.31, 19.37(a). Finally, because a decision on the remanded issue of service connection for a pulmonary disability could significantly impact a decision on the issue of special home adaptation, the issues are inextricably intertwined. A remand of the claims for special home adaptation is also required. 1. Entitlement to service connection for a pulmonary disability. The Veteran contends that she was exposed to asbestos, jet fuel exhaust, and non-tactical herbicides during active duty, which caused her current diagnosis of pulmonary fibrosis. During her basic training at Fort McClellan for bivouac exercise, she experienced excessive sinus drainage, difficulty breathing, nausea, and diarrhea, along with three (3) other unit members, and was treated with over-the-counter (OTC) anti-diarrheal medicine. She cites in support of her claim that the "Final Environmental Baseline Survey, Fort McClellan, Alabama" dated January 1998, Table 11-9 Herbicides and Quantity used at Fort McClellan list 2,4-D and 2,4,5-T used for vegetation control. The Veteran also contends that those non-tactical herbicides were stored and used while she was at Fort McClellan and that the combination of the 2,4-D and 2,4,5-T herbicide chemicals used can create Agent Orange, not that Agent Orange was used. See July 2024 Veteran's Statement; February 2025 Veteran's Statement in response to January 2025 SSOC; see also Final Environmental Baseline Survey, Fort McClellan, Alabama, dated January 1998 Table 11-9 Herbicides and Quantity used at Fort McClellan received July 23, 2024; Public Health Potential Exposure at Fort McClellan Article received December 6, 2024; PubChem Agent Orange Article received August 5, 2023. Additionally, the Veteran contends that she was exposed to asbestos while at Fort Dix because the barracks she lived in were constructed before WWII, and when she had to replace tiles that contained asbestos in her hallway and private sleeping room. She also contends that the insulated ductwork was wrapped in asbestos insulation hanging from the ceilings, and after a water leak was repaired, she had to clean up dust and small debris, citing, that EPA regulation 29 C.F.R. § 1910.1001(b) categorizes this type of material as Presumed Asbestos-Containing Material (PACM) is assumed to contain greater than one percent asbestos in support of her claim. See July 2024 Veteran's Statement; February 2025 Veteran's Statement in response to January 2025 SSOC; see also Mayo Clinic Asbestosis Article received August 5, 2023; National Institute of Health (NIH) Pulmonary Fibrosis Article received August 5, 2023. The Veteran further contends that some of her breathing problems at Fort Dix are also due to her close proximity to the landing strips since the barracks were no more than a quarter of a mile from the landing strips, and whenever she went outside, she could smell jet fuel. See July 2024 Veteran's Statement; February 2025 Veteran's Statement in response to January 2025 SSOC. In response to the January 2025 SSOC, the Veteran contends that her VA treatment records do not address the etiology of her condition because the VA medical staff have an unwritten rule not to opine on the cause of a Veteran's illness. The National Archives and Records Administration (NARA) is not the repository of information on military chemical weapons; rather, the US Army Environmental Command is based on being directed to them by the Pentagon's FIOA officer. Further, the Veteran disagrees that Desquamative Interstitial Pneumonia (DIP) can only be caused by cigarette smoking, as it is "cherry picking" based on the NIH, Cleveland Center, and Mayo Clinic articles stating that occupational exposure to diesel or fire smoke, asbestos, solder smoke, silica, beryllium, nylon filaments, wood, dust, graphite, talc, copper dust, aluminum, and tungsten cobalt have been associated with DIP and that DIP has been diagnosed in children due to a genetic defect and in non-smokers. She contends that her injury to her lungs is from exposure to jet fuel fumes, asbestos, and non-tactical herbicides as catalysts that started her pulmonary condition, consistent with her STRs with major constant treatment for respiratory symptoms, including being sent to Walter Reed Medical Center for treatment. See February 2025 Veteran's Statement in response to January 2025 SSOC; see also Mayo Clinic Asbestosis Article received August 5, 2023; National Institute of Health (NIH) Pulmonary Fibrosis Article received August 5, 2023. In the March 2025 Informal Hearing Presentation (IHP), the Veteran's representative contends that based on the service connection requirements per 38 C.F.R. § 3.303, the evidence must show a link between the Veteran's medical condition and their military service and that the relative degree of contribution is irrelevant because the nexus question at issue here, which the medical opinions did not address, concerns whether the in-service exposure contributed to any degree in the development of the current condition, citing Cohen v. Brown, 10 Vet. App. 128, 141 (1997) and Fennell v. Shinseki, No. 11-2831, 2013 U.S. App. Vet. Claims LEXIS 900, at *10 (Vet. App. June 5, 2013) (internal quotations omitted). See March 2025 Appellate Brief. In addition to the evidence referenced above, the Board notes that the Veteran previously submitted the following evidence to support her claim: (1) Pleural Fibrosis and Calcification Asbestos-related Pulmonary Disorders Merck Manual website Article received October 5, 2019; (2) March 2011 BVA Decision, Citation No.: 1108696, Docket No.: 09-16-193, received October 5, 2019; and (3) July 1986 Fort McClellan Asbestos Containing Material Survey - Miscellaneous Buildings received October 5, 2019. The Board also notes that the September 2007 Fort Dix Documentation of Environmental Indicator Determination - RCRA Corrective Action Environmental Indicator (EI) RCRIS code (CA750) Migration of Contaminated Groundwater Under Control, received January 17, 2023, indicated shallow and deep groundwater contamination at Fort Dix in the 1980s. Post-service, the Veteran was diagnosed with diffuse accumulation of macrophages within alveolar spaces, most consistent with desquamative interstitial pneumonia (DIP)/respiratory bronchiolitis interstitial lung disease (RBILD) from a VA right lung biopsy in September 2010. Under comments, the VA physician noted that all three biopsies from the right lung show similar features; there is a diffuse accumulation of macrophages in airspaces, most macrophages contain cytoplasmic pigment, significant interstitial fibrosis is not observed on the trichrome stain, and there is no evidence of honeycomb change or fibroblast foci. The VA physician also noted that there is a single subpleural focus of fibrosis noted in specimen C, and it is likely not related to DIP/RBILD. See September 2010 VA Pathology Report. In June 2023, the Board ordered additional development to substantiate the Veteran's claims and obtain a medical opinion to determine the etiology of the Veteran's pulmonary condition. However, pursuant to the June 2023 remand, the Board now finds that the following medical opinions are inadequate for the reasons provided below. In an attempt to determine whether the Veteran was exposed to toxins, the AOJ submitted a records request and obtained a November 2023 Records Research Response indicating the Military Records Research Center is unable to research this request because the Veteran's unit of assignment was not provided or adequately provided and they are also unable to research this request because the circumstances of exposure were not provided. The Board notes that the February 2024 TERA Memorandum found the Veteran did not participate in a TERA. However, the September 2024 TERA Memorandum found evidence of non-deployment-related exposure consistent with the circumstances of the Veteran's service based on the Canadian Centre for Occupational Health and Safety (CCOHS) Office General exposures article indicating "indoor air quality, fuel products such as diesel, JP-8, JP-4, carbon dioxide, carbon monoxide, dust, fiberglass, gases, VOCs from copying/printing machines/computers/carpets/cleaning supplies/solvents/pesticides/glues/paints/etc., dust mites, fungi, molds, bacteria, perfumes, body odor, food, eye strain, insufficient or extreme lighting and possible asbestos dust from training and duties as an Accounting Specialist" based on her DD 214. Therefore, the Veteran participated in a TERA, and the record is sufficient to trigger an examination/opinion under 38 U.S.C. § 1168(a). Additionally, the December 2024 TERA Memo made the same findings as the September 2024 TERA Memo and included additional citations to the November 2024 Military Personnel Records regarding Fort McClellan toxic exposures, November 2024 Military Personnel Records regarding assignment to Fort Dix, and the VA Public Health website for Fort McClellan at https://www.publichealth.va.gov/exposures/fort-mcclellan). The Board notes that while the AOJ afforded the Veteran a VA respiratory examination in September 2024 for TERA participation, the December 2024 TERA Memo was received after all of the medical opinions, and therefore the additional evidence of record was not included in their medical opinions. The Board also notes that in the March 2022 private CT Chest and Pulmonary Function Test (PFT) results, the private physician noted impressions of (1) mild progression of bilateral subpleural reticulations and similar scattered foci of upper lung zone honeycombing consistent with known fibrosing interstitial lung disease; (2) expiratory air trapping consistent with associated small airways disease; (3) no pulmonary mass or consolidation; (4) no intrathoracic lymphadenopathy; and (5) mild coronary artery calcifications. See March 2022 Private Chest CT and Pulmonary Function Test, received August 5, 2023. Pursuant to the June 2023 Board remand, medical opinions were obtained in February 2024 and March 2024, in which different VA examiners both opined that the Veteran's pulmonary disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the Veteran was afforded a VA Respiratory examination in September 2024 with a different VA examiner, who also opined negatively regarding the Veteran's TERA participation. However, the Board finds all of these opinions inadequate because the opinions fail to completely address the Veteran's contentions, fail to provide an explanation for conclusory statements regarding the Veteran's history of smoking, and fail to completely address the conflicting medical and toxic exposure evidence in the record. Specifically, the February 2024 VA medical opinion incorrectly stated that the Veteran's contention is false by stating that her March 2022 private CT scan showed honeycombing in her lungs consistent with pulmonary fibrosis from asbestos exposure; and that she had none of the risk factors for pulmonary fibrosis identified by the Mayo Clinic article (such as family members diagnosed with pulmonary fibrosis, diagnosed after 50 years of age, male dominance) because she does not have a diagnosis of idiopathic pulmonary fibrosis and therefore the risk factors she presented are irrelevant. The Veteran's March 2022 private Chest CT does state as one of the impressions that the Veteran has honeycombing consistent with known fibrosing interstitial lung disease. Additionally, the medical opinion failed to address the comments from the 2010 VA lung biopsy, which stated a single subpleural focus of fibrosis is noted in specimen C, and it is likely not related to DIP/RBILD. The medical opinion failed to address this evidence and explain why this is false or why this is not considered a diagnosis as part of the Veteran's pulmonary disability. Further, the medical opinion used conclusory statements that the Veteran's history of smoking cigarettes is the etiology of her lung condition without providing an explanation or addressing any other potential causes of her pulmonary disabilities. Similarly, the March 2024 medical opinion failed to address all of the Veteran's 2010 lung biopsy results and the March 2022 CT results. Additionally, the medical opinion used conclusory statements that the Veteran's "main cause" of her pulmonary disabilities is smoking based on the Veteran's history without explanation. The use of "main cause" indicates potential other causes that the medical opinion also failed to address; moreover, the examiner appears to require a higher legal standard than whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher). Further, the medical opinion failed to completely address the Veteran's toxic exposure contentions by not addressing the herbicides 2,4-D or 2,4,5-T and failed to address the conflicting medical and toxic exposure evidence of record. Moreover, the Board notes that the September 2024 medical examination includes March 2024 CT results that the March 2024 medical opinion also failed to address. Likewise, the September 2024 TERA medical opinion failed to address the Veteran's contentions regarding toxic exposure from both Fort Dix and Fort McClellan by only addressing part of her contentions regarding Fort Dix. Additionally, the medical opinion failed to address the Veteran's specific contentions regarding the alleged toxic exposure from herbicides of 2,4-D and 2,4,5-T, asbestos, and jet fuel fumes by only listing Fort Dix's possible toxins. Further, the medical opinion concluded that the Veteran's history of smoking precludes the Veteran from having any other causations without explaining or addressing the conflicting medical or toxic exposure evidence of record, including the CCOHS Office General exposures article cited in the September 2024 TERA memorandum. Accordingly, the AOJ erred by not obtaining complete and adequate VA opinions; remand is warranted to correct these pre-decisional duty to assist errors. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.") (internal citations removed). VA's duty to assist "includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal quotation omitted). 2. Entitlement to eligibility for a special home adaptation. The Veteran's service connection claim for a pulmonary disorder may significantly affect the decision regarding the issue of eligibility for a special home adaptation grant. As the issues are inextricably intertwined, the claim for special home adaptation is, therefore, also remanded. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records that are not currently included in the claims file. 2. Obtain addendum medical opinions, preferably from a respiratory/pulmonary specialist, regarding the nature and etiology of the Veteran's pulmonary disabilities. Schedule the Veteran for a VA examination if one is required by the clinician. Based on a review of the record, the clinician should opine on the following: (a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current pulmonary condition is caused by or related to her exposure to non-tactical herbicides while she was stationed at Fort Dix and/or Fort McClellan? Why or why not? In doing so, the examiner should address the Veteran's in-service TERA participation, considering the total potential exposure and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. To put it simply, is it nearly equally possible that the Veteran's exposure to toxins and TERA participation during service caused her current pulmonary disabilities? Why or why not? Please note that entitlement to service connection does not require that the in-service occurrence be the "primary," "majority," or even the "main" cause of a disease or disability, but rather, whether it is approximately balanced or nearly equal that there is "a causal relationship" between the Veteran's in-service occurrence and current disability. Please address the Veteran's claimed exposures to: (i) Nontactical Herbicide chemicals: 2,4-D (Butyl 2,4-dichiorophenoxyacetate) and 2,4,5-T (Butyl 2,4,5-trichiorophenoxyacetate), and possible Agent Orange exposure, not just Agent Orange exposure; (ii) Asbestos; (iii) Jet fuel, fumes, and exhaust; and (iv) A combination of any or all of these exposures. (b) Additionally, please address the respective conflicting medical and toxic exposure evidence of record: (i) VA Pathology Result from September 23, 2010, specifically, the clinician's comment regarding a single subpleural focus of fibrosis noted in specimen C that is likely not related to DIP/RBILD. (ii) Private CT Chest and Pulmonary Function Test Results from March 2022, received August 5, 2023, specifically, regarding the etiology of the impressions of: a. mild progression of bilateral subpleural reticulations and similar scattered foci of upper lung zone honeycombing consistent with known fibrosing interstitial lung disease; b. expiratory air trapping consistent with associated small airways disease; and c. mild coronary artery calcifications. (iii) Final Environmental Baseline Survey, Fort McClellan, Alabama, dated January 1998, Table 11-9 Herbicides and Quantity used at Fort McClellan received July 23, 2024, regarding herbicides found at Fort McClellan, including 2,4-D and 2,4,5-T; (iv) PubChem Article received August 5, 2023, regarding 2,4-D and 2,4,5-T chemicals being components of Agent Orange; (v) Public Health Potential Exposure at Fort McClellan Article received December 6, 2024; (vi) Mayo Clinic Asbestosis Article received August 5, 2023; (vii) National Institute of Health (NIH) Pulmonary Fibrosis Article received August 5, 2023; (viii) Pleural Fibrosis and Calcification Asbestos-related Pulmonary Disorders Merck Manual website Article received October 5, 2019; (ix) July 1986 Fort McClellan Asbestos Containing Material Survey - Miscellaneous Buildings received October 5, 2019; (x) September 2007 Fort Dix Documentation of Environmental Indicator Determination - RCRA Corrective Action Environmental Indicator (EI) RCRIS code (CA750) Migration of Contaminated Groundwater Under Control, received January 17, 2023, indicating shallow and deep groundwater contamination at Fort Dix in the 1980s; and (xi) September 2024 and December 2024 TERA Memos indicating TERA participation, citing to: a. Canadian Centre for Occupational Health and Safety (CCOHS) Office General Exposures article pgs. 7, 23, and 30, received September 17, 2024 b. November 2024 Military Personnel Records regarding Fort McClellan toxic exposures on pg. 184, received November 8, 2024; c. November 2024 Military Personnel Records regarding assignment to Fort Dix on pg. 184, received November 8, 2024; and d. VA Public Health website for Fort McClellan at https://www.publichealth.va.gov/exposures/fort-mcclellan. (c) Finally, please address the Veteran's contentions that: (i) Despite the Veteran's history of smoking, based on the September 2010 VA lung biopsy results and March 2022 private chest CT impression of pulmonary fibrosis were the starting catalyst for her current pulmonary disabilities to develop over time caused by her in-service toxic exposures to non-tactical herbicides 2,4-D and 2,4,5-T, asbestos, and jet fuel fumes at Fort Dix and Fort McClellan. A complete rationale should be given for all opinions and conclusions. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, then the medical professional should state and explain why an opinion cannot be provided without resort to speculation. In rendering each opinion, the clinician is advised that the Veteran is competent to report her symptoms and history. The clinician should not improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the service or post-service record to support their conclusions. If there is a medical basis to support or doubt the history provided by the Veteran, then the examiner should provide a fully reasoned explanation. 3. Consider any newly submitted evidence since the January 2025 SSOC and re-adjudicate the Veteran's claims for entitlement to service connection for a pulmonary disability and entitlement to eligibility for a special home adaptation. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished with a SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacobs, Kathleen J., Attorney-Advisor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.